US brief backs right to gay marriage in California in 'eight-state solution' stance

The Obama administration has filed an amicus brief backing a right to gay marriage in California that suggests resolving the case in a way that could affect only eight states with civil unions.

The administration argues that California is violating the equal protection clause by withholding the benefits of marriage to gays while allowing them to enter into domestic partnerships, report SCOTUSblog, the Washington Post and the New York Times. The Supreme Court brief (PDF) notes that seven other states—Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island—also have civil union laws.

“What the brief endorsed,” SCOTUSblog says, “is what has been called the ‘eight-state solution’—that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through ‘civil unions’) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.”

The brief endorsed a tough “heightened scrutiny” standard for evaluating California’s law that could be cited in an effort to strike down gay marriage bans in states without civil union laws.

The United States also advocated a “heightened scrutiny” standard in its brief calling for the Supreme Court to strike down a portion of the federal Defense of Marriage Act that denies federal benefits to gay couples who are legally married. Nine states and Washington, D.C., permit gay marriages.

The California case is Hollingsworth v. Perry. The DOMA case is United States v. Windsor.

Prior coverage:

ABAJournal.com: “Will Justices Opt for ‘Offramps’ in Same-Sex Marriage Cases? Standing Is One of the Issues”